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Lorne and Spencer MacLean, Family Lawyers Vancouver

The estate litigation and BC Unfair Wills Joint Tenancy lawyers at MacLean Law regularly update British Columbians on key developments in unfair BC Wills and estate dispute cases. A recent BC decision provides a tidy summary of the law on BC Unfair Wills Joint Tenancy issues. We warn you that this case was decided under the old Wills Variation Act legislation and certain rules and presumptions have changed. Contact our lawyers early on in an unfair will and estate litigation case as strict time limits apply. Call us toll free at 1-877-602-9900 to meet with us in Vancouver, Calgary, Surrey, Kelowna, Fort St John and Richmond.

BC Unfair Wills Joint Tenancy

  1. What happens when elderly parents place a home in joint tenancy with one but not all of their children?
  2. What happens to the other children who get no share of the home as it does not form any part of their inheritance?
  3. What rules apply to ensure fairness?
  4. In BC we have a variety of rules that exist to ensure respect for valid wishes of a will maker and to ensure beneficiaries are fairly provided for in a Will.
  5. Different rules apply to gifts made before death. However, to ensure the growing aging population is not taken advantage of, undue influence and anti-fraud rules exist to protect aging persons with assets that are not unduly influenced and taken advantage of.

In Beam v. Mills Estate, Mr. Justice Harvey upheld the gift of the home to one child, said the presumption of resulting trust ( if a house is placed in someone’s name for free it may still be held in trust for the gifting party), was rebutted so the gift was valid, said there was no improper undue influence by the child who received the gift of a joint tenancy interest in the home and said there was no fraud in the real estate transfer. As a result, the children who did not have their names on title to the home shared an almost nonexistent estate equally.

BC Unfair Wills and Estate Disputes The Basics

Just as importantly for the rest of us concerned with  BC Unfair Wills Joint Tenancy issues is the concise summary of the law in BC on all the hot button issue of undue influence we see in Vancouver estate disputes and unfair Will variation cases:

 Undue Influence law in BC

[80]         Gifts, or purported gifts, made in secrecy in circumstances not dissimilar from these, raise the presumption of undue influence, which, of course, is rebuttable. The donee need only prove the absence of undue influence on the balance of probabilities: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 [Geffen].

[81]         In Geffen, Wilson J. described influence as “the ability of one person to dominate the will of another, whether through manipulation, coercion or outright but settle abuse of power”, resulting in the donee being unable to bring an independent mind to the impugned transaction.

[82]         Thus, the initial question is whether the nature of the relationship between the donor and donee gives rise to the potential for domination. Once the circumstances are established, the onus shifts to the recipient to rebut it.

[83]         As to either testamentary or donative competence, the onus is upon the person asserting a lack of competence to prove, on the balance of probabilities, that the testatrix/donee had not the necessary mental capacity to understand the nature of the transaction, thus vitiating it: O’Neil v. The Royal Trust Co, [1946] S.C.R. 622.

167]     In the result, I conclude that the intention of Lori’s parents was to beneficially confer upon her the right of survivorship in McBride, and that their common intention survived until Lois’s 2009 Will and thereafter until her death.

[168]     I am not persuaded that the 2001 Transfer should be set aside on the basis of either undue influence or lack of capacity to understand its legal effect. Nor am I persuaded that the provisions of the FCA have any application.

BC Undue Influence Factors

105]     In Stewart v. Mclean, 2010 BCSC 64, a non-exhaustive list of factors for courts to consider were set out by Punnett J. at para. 97, where he stated:

[97] To rebut the presumption of undue influence, the defendant must show that the donor gave the gift as a result of her own “full, free and informed thought”: Geffen at 379. A defendant could establish this by showing:

  1. no actual influence was used in the particular transaction or the lack of opportunity to influence the donor (Geffen at 379; Longmuir at para. 121);
  2. the donor had independent advice or the opportunity to obtain independent advice (Geffen at 379; Longmuir at para. 121);
  3. the donor had the ability to resist any such influence (Calbick v. Warne, 2009 BCSC 1222 at para. 64);
  4. the donor knew and appreciated what she was doing (Vout v. Hay, [1995] 2 S.C.R. 876 at para. 29, 125 D.L.R. (4th) 431); or
  5. undue delay in prosecuting the claim, acquiescence or confirmation by the deceased (Longmuir at para. 76).

Another relevant factor may be the magnitude of the benefit or disadvantage (Geffen at 379; Longmuir at para. 121).

Presumption Of Resulting Trust On Joint Tenancy Of Home

[84]         Gratuitous transfers from a parent to an adult child carry with them a rebuttable presumption of resulting trust: Pecore v. Pecore, [2007] 1 S.C.R. 795. In order to rebut this presumption, it is incumbent upon the defendant, in this case, Lori, to establish the intention of her mother and father as at the date of the 2001 Transfer. If appropriate, heed can be taken of evidence occurring after the transfer date if such informs the trier of fact as to the intention of the party as at the time of the transfer.

[85]         As to a party seeking to set aside a transfer of property pursuant to the provisions of the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163 [FCA], he or she must prove that the transaction was intended or resulted in the delay or hindrance of a creditor of their just and lawful remedies. The claiming party must be able to assert a legal or equitable right as at the time of the transaction that was thwarted as a result of the transaction.

[86]         The application to vary Lois’s will pursuant to the provisions of the WVA will only be of moment in the case before me in the event McBride is restored to Lois’s estate. Otherwise, there is little, if anything, of value in the estate to make adequate provision for any of the named beneficiaries by varying its terms.

BC Unfair Wills Variation Law Under Wills Variation Act

[87]         Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 [Tataryn], is the leading case outlining a testator’s duties to a surviving spouse and/or children. Briefly stated, the court has a power to vary the provisions of the testator’s will so as to take into consideration the testator’s legal and moral duties to provide adequate maintenance and support for children. Where concerns are stated, resulting in the disparate treatment of one or more children, the concerns raised must be legitimate on an objective standard. There is no need for a child challenging a will of a parent to prove financial need.

BC Unfair Wills Joint Tenancy Lawyers 1-877-602-9900

BC Unfair Wills Joint Tenancy cases are complicated and you need a top estate litigation and unfair wills dispute lawyer like on of the senior lawyers at MacLean Estate Litigation in your corner.

Strict deadlines apply so call us toll-free across BC early on at 1-877-602-9900.